N R DESAI Vs. Y N PAREKH

JUDGEMENT

(1.) In all these three matters, not only the parties are common but identical order is passed by the learned Metropolitan Magistrate, Court No.2, Ahmedabad and therein the facts and questions of law raised are common. In fact, three separate complaints have been filed by the Insurance Inspector, E.S.I. Corporation, Ahmedabad and that is how three separate petitions are there. In view of these facts, these matters are taken up for hearing together and are being decided by this common order. The facts of the case and the grounds of challenge to the order are being taken up from special criminal application No.940/98.

(2.) By way of this petition, under Article 226 of the Constitution of India read with sections 397 and 482 of Code of Criminal Procedure, 1973, the petitioner challenges the legality, validity and propriety of the order passed below Ex.2 in Criminal Case No.2611/95 by the learned Metropolitan Magistrate, Court No.2, Ahmedabad dated 9-7-1998. Further prayer has been made by the petitioner for quashing and setting aside of the criminal complaint No.2611/95 filed by the respondent No.1, as what it is stated, it amounts to abuse of the process of the Court and same does not disclose any offence whatsoever against the petitioner. The respondent No.2, is a registered company and respondent No.3, is the Director thereof.

(3.) The facts of the case, as per the petition, are that the respondent No.2 is a registered company and the respondent No.3 is its Director. The respondents No.2 and 3 applied for loan from Gujarat Industrial Investment Corporation on the basis of their project report. When GIIC enters into a loan agreement with the loanee company, there is a special covenant in the same whereby "nominee" of the GIIC Ltd. is appointed as Nominee Director for the purpose of supervising financial working of such a company with the purpose of protecting financial interest of GIIC Ltd. It is stated that such a Nominee Director is not the Principal employer as envisaged under the provisoins of the Employees' State Insurance ACt, 1949 as well as Regulations made thereunder. It is stated that the petitioner is in no way responsible for day to day administration and working of the respondent No.1 company. The petitioner submits that because of some fault of the respondents No.2 and 3 and as they have committed alleged breach of provisions of the Act aforesaid as well as the Regulations, whereby it is alleged that the respondent No.2 did not file any return in quadruplicate as provided under Regulation 26 of the Employees' State Insurance (General) Regulation, 1950, the respondent No.1, Insurance Inspector, filed a criminal case being Criminal Case No.2611/95 in the Court of learned Metropolitan Magistrate, Court No.2, Ahmedabad against the petitioner company and other Director. The cognizance in the complaint has been taken and summons were issued to the petitioner. After receipt of summons, the petitioner appeared in the Court and filed an application for dropping the proceeding against him. That application came to be rejected by the Metropolitan Magistrate, Court No.2, Ahmedabad under the order dated 9-7-1998. Hence, this petition.